Canadian wish list for secret ACTA treaty long, varied

A Canadian law professor has forced the government to cough up the various " …

The Anti-Counterfeiting Trade Agreement (ACTA) rolls secretly onward, with all negotiations conducted privately, as all draft documents are kept confidential. Bits of information have dribbled out over the past year—the US has made public the various comments on the treaty submitted by stakeholders—but several of the main players involved have been even less forthcoming. Canadian law professor Michael Geist has used the country's "Access to Information Act" to finally gain access to some of the treaty requests (PDF) made by stakeholders there, and the document makes quite clear that Canada has a wide range of views on ACTA... some questioning sharply whether it is needed at all.

Even these responses, which were submitted at the government's request in April 2008, are kept private, as is so much about the treaty. While the document lays out the various ACTA requests, it won't say who made them—a good thing for whatever stakeholder hopes to use ACTA to shove a "three strikes and you're off the Internet" copyright rule into Canadian law.

But for every request asking for more DRM, there's another request "that DRM be made illegal or regulated." For every request that hopes to break down the lines between "commercial" and "noncommercial" copyright infringement, there are requests to preserve due process and to make the public aware of fair use rights.

To give you a sense of how far apart the various sides in this battle are, consider the following two lists of requests. The first requests all appear to come from Big Content, and they include:

Increased criminal penalties for counterfeiting and piracy

Request for provisions on statutory damages for civil offenses

Request that no distinction be made between penalties for commercial and noncommercial infringement

Inclusion of specific antipiracy provisions dealing with digital piracy and marketing of counterfeit and pirated hard goods over the Internet

Provisions prohibiting acts of circumvention, trafficking in circumvention devices, as well as deterrent criminal and civil remedies against those engaged in the provision of services and tools that circumvent TPMs [DRM]

Mechanisms for the disclosure of repeat infringement information to rightsholders, as well as mechanisms to enable the termination of Internet access for repeat infringers, have also been requested

But the ACTA skeptics managed to include plenty of their own requests:

ACTA negotiations "should not serve as a vehicle for domestic legislative reform"

The Government of Canada should insist on full public disclosure of ACTA negotiations

Criminal and civil provisions under ACTA should target large-scale commercial operations, such as organized crime, rather than noncommercial infringement

ACTA should not vest "police-type" search and seizure measures in private sector organizations

ACTA should not target consumer activities such as time shifting, media shifting, and/or format shifting

We have no idea what any of this means, of course. None of the countries negotiating the deal are dropping many hints about the way that ACTA is progressing, though we do know that regular meetings have taken place around the world this year on the issue (and the next meeting will focus on Internet issues). Canada has already made clear that it values "industry" input into the drafting process, but it doesn't care quite so much for the views of NGOs or civil society groups.

Still, the comments at least signal to government negotiators that plenty of people outside the content industries care about the treaty. The wide-ranging attacks on the government's recent C-61 copyright bill, attacked as a "Canadian DMCA," certainly attracted government attention as well. Copyright concerns are no longer parochial; they have become a truly public issue.

In an open and accountable process, the various pressures would hopefully produce a balanced treaty that continues to respect the public's rights, as well as those of content owners, but the secrecy of the process certainly doesn't breed this sort of confidence in ACTA skeptics.

As Geist put it in his newspaper column this week, "To date, it appears that ACTA is pushing Canada toward a host of new international commitments that are drafted by officials in Washington and Tokyo with virtually no public input. With the next round of negotiations only weeks away, these new revelations reinforce the necessity for new Industry Minister Tony Clement and Canadian Heritage Minister James Moore to open the process to greater public scrutiny and discussion."

We would welcome a bit of that scrutiny and discussion in the US, too.